Bernstein v. US Department of Justice
While a graduate student at the University of California at Berkeley, Bernstein completed the development of an encryption equation (an "algorithm") he calls "Snuffle." Bernstein wishes to publish a) the algorithm (b) a mathematical paper describing and explaining the algorithm and (c) the "source code" for a computer program that incorporates the algorithm. Bernstein also wishes to discuss these items at mathematical conferences, college classrooms and other open public meetings. The Arms Export Control Act and the International Traffic in Arms Regulations (the ITAR regulatory scheme) required Bernstein to submit his ideas about cryptography to the government for review, to register as an arms dealer, and to apply for and obtain from the government a license to publish his ideas. Failure to do so would result in severe civil and criminal penalties. Bernstein believes this is a violation of his First Amendment rights and has sued the government.
After four years and one regulatory change, the Ninth Circuit Court of Appeals ruled that software source code was speech protected by the First Amendment and that the government's regulations preventing its publication were unconstitutional.
Bernstein's motion for partial summary judgment, arguing that the ITAR and AECA are unconstitutional because they are a prior restraint on protected publication and speech, that they are vague, and that they are overbroad. Also includes many interesting declarations submitted to the court...
April 17, 1996
Electronic Frontier Foundation Contacts:
Shari Steele, Staff Counsel
Lori Fena, Executive Director
Denying the government's motion for dismissal in mathematician Daniel Bernstein's suit against the State Department, Judge Marilyn Hall Patel in the Northern District of California...
On October 20th in San Francisco, we'll have the first public hearing
in the EFF/Bernstein lawsuit, which seeks to have the export laws on
cryptography declared unconstitutional. You are invited!
Meet at the Federal Building in San Francisco, 450 Golden Gate Avenue.
The first "oral arguments"...
Apr. 15, 1996 court decision denying the govt. motion to dismiss, in Bernstein v. State Dept. This is a very important decision, as it establishes caselaw precedent for the First Amendment protection of software. The court also takes the government to task for restricting the paper publication...
The court reporter's transcript of the oral arguments made at the hearing on the government's motion to dismiss the Bernstein case for lack of jurisdiction (a motion that was denied)....
Reply Memorandum of Points and Authorities in further support of Defendants' Motion to Dismiss. The government's rebuttal to Bernstein's opposition to its motion to dismiss....
Declaration of Lee Tien, an attorney on Bernstein's legal team, declaring that the several memos enclosed were obtained under the Freedom of Information Act from the Department of Justice and are true copies. These memos describe the Justice Department's stance that the export laws are...
This is a memo prepared for Davis Robinson, then the Legal Adviser for the Department of State. This is a very well-documented paper on the various unconstitutional provisions of ITAR. The two areas this memo concentrates on are the "technical data" definition as well as the definition...